During the last decade, most states across the country have enacted laws or policies which share common themes regarding victims of crime and pre-trial release. The belief is that victims have a right to “reasonable” protection from the defendant by imposing bail and/or conditions of release by the court, police department or bail commissioner. Every states provides rights through laws for services to victims. Many states have attempted to address the complicated issue of victim interests related to pretrial release. Victims’ rights laws in California, Delaware, Illinois, Louisiana, Mississippi, Missouri, Oklahoma, Oregon and Texas are distinct because they specifically direct judges to consider the safety of victims when determining conditions of pretrial release. We have laws in Connecticut that address various victim-specific rights and protections at the pretrial stage and during the pendency of the case that have a similar intention. The topic of my paper is the pre-trial process in Connecticut and the rights of the victim during that process.
When arrested, the defendant is processed at the police department commonly referred to as booking. At this time it is determined by the arresting authority if the defendant will be held on bond or released. If the defendant has a moderate criminal history and the crime is considered not to be severe in nature the defendant will be released on a Promise to Appear (PTA) or a Non-Surety Bond (which is essentially a PTA with a denomination). Defendants with serious accusations or criminal history may have a cash or a surety bond. In these cases they may post the cash amount of the bond or hire a bondsman to post it, securing their release. The purpose of the bond is to insure the defendant’s appearance in court. Regardless of method of release the process of protecting the victim begins with imposing conditions of release, which include temporary protection orders. Granted these are only pieces of paper but it does threaten additional arrest and charges if the order is violated. In the case the defendant does not post bond they a brought to the next available court date for an arraignment.
Post arrest, the first appearance the accused has in court is called an arraignment. This begins a series of events required by our judicial process that must occur prior to the final disposition of the case. Ultimately, the defendant may go to trial, may plead guilty or may agree to plead guilty if the charges are reduced or a lesser offense with lighter consequences is offered. In rare cases the court may decide that the defendant is mentally ill or mentally disabled and does not have the ability to understand legal proceedings and, as a result, cannot be tried.
At the arraignment a risk assessment is conducted by the bail commissioner’s office a part of Court Support Services. The judge will consider all of the facts and circumstances presented to them by the states attorney, defence attorney and bail commissioner. Based off of that information the judge will determine the type of pretrial release is the least restrictive but assures appearance along with the conditions of release. Often in domestic related offences they impose a restraining order which vary in degree and in more violent cases GPS. Commonly known as electronic monitoring the intent of the technology is to warn the victim if the defendant is within a specified distance can be ordered for a violation of a restraining or protection order when the defendant is determined to be high-risk. Electronic monitoring can also be ordered for class D felonies or misdemeanors except: 3rd and 4th degree sex assault; 1st degree stalking; 2nd degree assault involving a firearm or motor vehicle; and where the victim is elderly, blind, disabled, pregnant or has an intellectual disability. Unfortunately the real world application of this technology has not worked out as planned. The only thing protecting the victims at this point are threats of additional charges if release conditions are violated.
Once the pretrial release method has been determined the defendant is either released, posts bond or held in a correctional center for the pendency of their case. The hearings before the trial are called pre-trial. In Connecticut, the majority of cases are resolved during the pre-trial process. The typical resolutions are as follows:
- The prosecutor/States Attorney of judge may find when reviewing the arrest report that the defendant did not break the law because there was insufficient evidence or no probable cause, and will dismiss the case.
- The prosecutor/States Attorney may Nolle the charges against the defendant. Nolle prosequi is a Latin phrase meaning “will no longer prosecute” The case can be re-opened at any time over the next 13 months. If it is not re-opened during it is automatically dismissed.
- By far most cases are plea bargained. In exchange for a plea of guilty to one charge, the State’s attorney agrees to drop other charges against the defendant or reduce the severity of the charges. Plea bargains are used often. One reason is the State’s attorney when the evidence against the defendant is not very strong or to quickly reduce the case load on the court. Some cases those involved will not testify for a variety of reasons. The court, states attorney and defendants attorneys will usually all push for a plea agreement. Each entity has their own motivation for doing so.
- Often as part of the plea bargain, the defendant may apply for a diversion program. The judge must approve acceptance in to the program. The defendant will be mandated to attend classes, counseling, drug/alcohol tests, treatment, or community service. These are commonly referred to as diversionary programs. Connecticut has a large number of these programs which come at a very high cost to the taxpayer. Upon completion of the program by the case is dismissed and there will be no criminal record. Victims are notified if the defendant has applied for the program and given the opportunity to let the court know if you think the application should or should not be granted.
There are numerous pre-trial hearings in most cases. This gives the states attorney, defense attorney, victims advocate and judge a chance to discuss options of resolving the case before trial. As I mentioned before most cases find a resolution during this period.
Plea negotiations have become necessary part of the process for a variety of reasons. Most of which have nothing to do with the rights of the accused or victims. It is about speed because the court is overrun with cases and a plea negotiation is the fastest way to resolve the matter. irst, cases end much faster if they are successfully plea bargained. It’s a great way to clean up a congested court docket. Trials are very time-consuming and expensive for both the state and the defense. Most defendants could not afford a trial ( and many would not win it anyway). Our judicial system costs nearly 3/4 of a billion dollars a year and processes approximately 150,000 custodial arrests annually. The volume and cost are the overwhelming reason the vast majority of criminal cases end with a plea bargain.
The factors that are considered by the prosecution when negotiating a plea bargain with the criminal defense attorney are:
- Type/severity of the crime involved
- Criminal history/record of the defendant
- Impact of the crime had on the crime victim
- Strength of the state’s case if the case were to go to trial (remember there must be proof “beyond a reasonable doubt” to win a conviction in a trial.)
Plea negotiations have become a intrical part of the process and are here to stay. A plea bargain before trial can be a guarantee that a defendant will have some consequences for the crime. It can save victims and witnesses the discomfort of testifying in court. Perhaps the largest benefit, is the case is goes through the process much faster which means defendants are “punished” and victims can get on with their lives.
The judge has the final say on any plea agreement. However, the victim has a legal right to be heard by the judge regarding whether or not the plea agreement should be accepted or rejected by the court. There is little to no documentation on what effect this has on the judges ultimate decision. A first time offender is all but guaranteed acceptance into a program in Connecticut. It is not uncommon for defendants with multiple offenses and a criminal history being given several “second chances”. Usually these programs come at the cost of the victim, limiting the consequences and possibility of restitution.
In Connecticut, crime victims have various rights but they need to fill out a form called Notice of Intent to Exercise Crime Victim Rights with the Office of Victims Advocates. Once submitted crime victims have the right to be notified of the date, time and place of the court proceeding at which the court will decide whether to accept or reject any plea agreement reached between the state and the defendant. The state’s attorney can add some challenges to the process by making the victim provide postage etc. A crime victim also has the right to receive from the prosecutor the terms and conditions of any plea agreement reached between the state and the defendant prior to the plea hearing but no mention of their ability to influence that agreement. Again the onus is on crime victim is required to request to receive such information from the prosecutor in “writing.”
In typical Connecticut fashion, nothing can be simple and the victim must know their right to attend and to be heard at the plea hearing is separate from the right to attend and to be heard by the court regarding the sentencing of the defendant. You have the right to attend and be heard at both proceedings but its not clear if another form is needed.
The pre-trial hearings can go on for a very long time, in some cases years. This is usually predicated on the severity and complexity of the case. Defendants that have a competent attorney may have one or more pre-trial hearings on a variety of constitutional questions regarding evidence, witnesses and confessions etc. These issues are usually presented to the court through a formal request called a motion. A hearing will be scheduled at a future date for a oral argument before the judge. The judge will the grant of deny the motion. These pre-trial motions are filed by the defendant and/or the State and must be done for rulings from the judge on specific legal issues. Both sides argue their cases for or against the motions that have been submitted to the court. Examples of pretrial motions are motions to keep evidence out of the trial, substitution of a judge, change of venue, or appointment of expert witnesses. A motion may also be filed for a bond reduction if the defendant is still held in custody.
Discovery is also conducted during the pretrial phase. The purpose of discovery is obtain information that is held by the other party. During this phase the judge may hold hearings to determine whether certain evidence will be admitted or suppressed at the defendant’s trial; whether there is a legal reason why the defendant should not be tried at all; or decide rules for trial.
It is common to have numerous requests for a continuance made by the defendant’s counsel and the state’s attorney in order to engage in pre-trial necessities. These include, conducting further investigations; interviewing witnesses; testing and/or analyzing evidence; reviewing discovery materials; retaining, interviewing and preparing expert witnesses; filing a variety of motions with the court; making application for a diversionary program; and negotiating the plea agreement. However, continuances are a common source of delay in the courts. It’s not uncommon for the granting of continuances requests. This often means a delay of a year or more before the case actually comes to trial.
One of the victim’s rights in Connecticut is a timely disposition of the case. Frivolous continuances can certainly violate this right. There is some confusion as to what this actually means a victim can do and the defendants rights vs the victim. This is a ever present issue in victimology. There is a form for a victim to be heard by court called a Motion for Notification and Opportunity to be Heard Regarding Requests for Continuance of a crime. Connecticut’s Office of the Victim Advocate contends that this right is inclusive of the right to be heard with respect to the granting of continuances in criminal cases.
At the culmination of all of these legal proceedings the parties either reach an agreement through plea bargaining and the defendant will not go to trial. If there is no agreement the case will be put on the trial list. The actual trial can take months to occur. During that entire time the defendant must follow all of their conditions of release, any misstep such as violation of the protective order could result in incarceration and addition criminal charges.
Public Act: 12-133 AN ACT CONCERNING COURT OPERATIONS AND VICTIM SERVICES
Public Act: 16-34 AN ACT PROTECTING VICTIMS OF DOMESTIC VIOLENCE
Public Act: 17-99 AN ACT CONCERNING COURT OPERATIONS, VICTIM SERVICES, FRAUDULENT FILINGS AND TRANSFERS OF AN INTEREST IN REAL PROPERTY TO A TRUST.
Connecticut Practice Book: Chapter 38 Pretrial Release